Lawyers and their clients must always keep in mind how their privilege assertions play out in the real world. A human judge overseeing the case will read the withheld documents and consider the party’s arguments justifying the withholding.
In McLaughlin v. Taylor University, the judge considering whether defendant properly withheld a document bluntly stated that defendant’s “briefing is clear as mud” — leaving him to add, “I have no idea who drafted the Document.” Cause No. 1:23-cv-00527-HAB-ALT, 2025 U.S. Dist. LEXIS 225423, at *2 (N.D. Ind. Nov. 17, 2025). The judge later quoted an old “candy commercial” for Tootsie Pops: “the world may never know.” Id. at *3 (citation omitted). He apparently was inspired by the return of a 50-year-old commercial in which Mr. Owl scams a little boy out of a Tootsie Pop — asking “how many licks does it take to get to the [Tootsie Roll] center of a Tootsie Pop?” (the answer to which is “the world may never know”). W.B. Doner & Co., “How Many Licks?” aired by Tootsie Roll Industries in 1969.
Lawyers analyzing some judges’ opinions may have to cast a surprisingly wide net to understand the judge’s reasoning and references.
